FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-12246,
DIVISION "C" Honorable Sidney H. Cates, Judge
A. Elias Paula J. Ferreira Graham Brian LAW OFFICE OF MIGUEL
A. ELIAS COUNSEL FOR PLAINTIFF/APPELLANT
Kiefer, Jr. Megan C. Kiefer Christopher M. Short KIEFER &
KIEFER COUNSEL FOR DEFENDANT/APPELLEE
composed of Chief Judge James F. McKay, III, and Judge Sandra
Cabrina Jenkins, Judge Dale N. Atkins)
CABRINA JENKINS JUDGE.
appeal arises out of a discovery dispute in a personal injury
action in which plaintiff/appellant Dylcio Rodriguez Cruz
("Cruz") failed to appear for a court-ordered
independent medical examination ("IME"), allegedly
because Cruz had been involuntarily deported to Honduras and
could not return to the United States. Cruz appeals the trial
court's March 13, 2018 judgment granting a Motion to
Dismiss for Failure to Comply with Court Order filed by
defendant/appellee Progressive Security Insurance Company
("Progressive"). For the reasons that follow, we
reverse the trial court's judgment and remand for further
AND PROCEDURAL BACKGROUND
December 29, 2015, Cruz and his son Jose Rodriguez-Zaldivar
(collectively, "Plaintiffs") filed suit against
Progressive and its insured, Charles Leggett, for personal
injuries allegedly sustained by Plaintiffs in an automobile
accident on January 15, 2015. In September 2015, Dr. David
Wyatt, an orthopedic surgeon, performed a right knee
arthroscopy on Cruz. Dr. Wyatt opined that Cruz likely would
require a total knee replacement surgery in the future. In
Cruz's November 2016 deposition, he testified that he was
not a U.S. citizen, and had been residing in the U.S. since
March 20, 2017, Cruz filed a Motion in Limine, in which his
attorney stated that Cruz had been detained by the U.S.
Immigration and Customs Enforcement Agency ("ICE"),
and deported to Honduras with no specific return date.
Cruz's attorney argued that Cruz's deposition should
be used at trial in lieu of live testimony because he now
resided more than 100 miles from the place of trial under La.
C.C.P. art. 1450(A)(3)(b). The trial court did not rule on
the Motion in Limine.
5, 2017, Progressive filed a Motion to Compel Independent
Medical Examination ("Motion to Compel").
Progressive requested a court order directing Cruz to appear
at an IME with Dr. David Aiken, a board-certified
orthopedist, on October 25, 2017. In response, Cruz's
attorney filed a memorandum in opposition to the Motion to
Compel, and also filed a Motion for Protective Order, seeking
to protect Cruz from submitting to an IME in Louisiana
because he had been deported to Honduras by the ICE against
his will. Cruz's attorney argued that Cruz would be
violating federal criminal law if he returned to Louisiana
for the IME. Cruz's attorney offered to schedule an IME
at a medical clinic located near Cruz in Honduras.
August 25, 2017, the trial court granted Progressive's
Motion to Compel, and ordered Cruz to appear for a physical
examination to be conducted by Dr. Aiken on October 25, 2017
in Metairie. When Cruz did not appear for the IME, or advise
Dr. Aiken that he would not be appearing, Progressive filed a
Motion to Dismiss for Failure to Comply with Court Order.
Progressive asked the court to dismiss Cruz's claims,
with prejudice, under La. C.C.P. art. 1471, or in the
alternative, strike Cruz's claim for his right knee
injury. In his opposition to the Motion to Dismiss,
Cruz's attorney stated that Cruz had been deported on
February 21, 2017 and, under federal law, he could not return
to the U.S. for at least ten years. Again, Cruz's
attorney offered to produce Cruz for an IME in Honduras.
March 13, 2018, the trial court signed a judgment granting
Progressive's Motion to Dismiss, and dismissing
Cruz's claims, with prejudice. Cruz timely
trial court has much discretion in imposing sanctions for
failure to comply with a discovery order, and a choice of
sanctions will not be reversed absence a clear showing that
the trial court abused its discretion." Creppel v.
Tidewater Marine Serv., Inc., ...